This case sets FullerÂs Â the British brewery Â and Kelloggs Â the giant of cereal industry in a dispute. In June 2018, Kelloggs formed an opposition against the ÂFruit LoopÂ seasonal summer beer of FullerÂs. The giant claims that it infringes its trade mark ÂFruit LoopÂ for one of its cereals.
Kelloggs company uses section 10 (3) Trade Marks Act 1994 which details that use of an identical or similar sign for goods or services, whether identical, similar or dissimilar, if the use is detrimental to, or takes unfair advantage of the distinctive character or repute of the mark on the UK market can be trade mark infringement.
On this basis, Kelloggs claims that FullerÂs beer benefits from the reputation of Kelloggs cereals. Moreover, it held that the use of ÂFruit LoopÂ as the name of an alcoholic beverage deteriorates its brand image.
FullerÂs defence was based on two arguments. Firstly, it argues that the two products are really different because one is an alcoholic beverage and the other one is breakfast item. Secondly, it claims that in a shop, the beers are usually on a distant place from the cereals. Those two arguments help the defence to prove that the consumers cannot confuse the two products. Therefore, there is no possibility for the ÂFruit LoopÂ beer to take an unfair advantage of the Kelloggs reputation and to deteriorates its brand image.
The UK Intellectual Property Office (UKIPO) gave its decision on the 2nd of May 2019. It decided that the marks are similar but only to a low degree. It can be explained by the following reasons. FullerÂs mark includes extra terms Âtropical fruit pale aleÂ. Moreover, we can find an alcohol content label on the FullerÂs bottle of beer.
Therefore, the UKIPO held that FullerÂs beer had a distinctive feature which is likely to help the consumers to not be mistaken between cereals and the beer. In addition, the UKIPO held that the Kelloggs cereals ÂFruit LoopÂ lack reputation in the UK market (much more in US one).Â Considering that, it is not possible for FullerÂs brand to take an unfair advantage of the repute of Kelloggs brand, and KelloggÂs opposition has failed.